[Congressional Record: February 7, 2008 (Senate)]
[Page S775-S778]
FISA AMENDMENTS ACT OF 2007--Resumed
The PRESIDING OFFICER. The clerk will report the bill.
The bill clerk read as follows:
A bill (S. 2248) to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the
provisions of that Act, and for other purposes.
Pending:
Rockefeller-Bond amendment No. 3911, in the nature of a
substitute.
Whitehouse amendment No. 3920 (to amendment No. 3911), to
provide procedures for compliance reviews.
Feingold amendment No. 3979 (to amendment No. 3911), to
provide safeguards for communications involving persons
inside the United States.
Feingold-Dodd amendment No. 3915 (to amendment No. 3911),
to place flexible limits on the use of information obtained
using unlawful procedures.
Feingold amendment No. 3913 (to amendment No. 3911), to
prohibit reverse targeting and protect the rights of
Americans who are communicating with people abroad.
Feingold-Dodd amendment No. 3912 (to amendment No. 3911),
to modify the requirements for certifications made prior to
the initiation of certain acquisitions.
Dodd amendment No. 3907 (to amendment No. 3911), to strike
the provisions providing immunity from civil liability to
electronic communication service providers for certain
assistance provided to the Government.
Bond-Rockefeller modified amendment No. 3938 (to amendment
No. 3911), to include prohibitions on the international
proliferation of weapons of mass destruction in the Foreign
Intelligence Surveillance Act of 1978.
Bond-Rockefeller modified amendment No. 3941 (to amendment
No. 3911), to expedite the review of challenges to directives
under the Foreign Intelligence Surveillance Act of 1978.
Feinstein amendment No. 3910 (to amendment No. 3911), to
provide a statement of the exclusive means by which
electronic surveillance and interception of certain
communications may be conducted.
Feinstein amendment No. 3919 (to amendment No. 3911), to
provide for the review of certifications by the Foreign
Intelligence Surveillance Court.
Specter-Whitehouse amendment No. 3927 (to amendment No.
3911), to provide for the substitution of the United States
in certain civil actions.
The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
amendment no. 3915
Mr. FEINGOLD. Mr. President, this is the amendment we call Use Limits
Amendment, amendment No. 3915.
This amendment gives the FISA Court the option of preventing the
Government from using information on U.S. persons that it has collected
using targeting or minimization procedures that are later found to be
illegal.
As the legislation now stands, if the Government uses procedures that
are later declared unlawful, there is nothing to stop it from using the
information it collected illegally. This does not make any sense, and
it takes away any incentive for the Government to develop lawful
procedures the first time around. It is also not consistent with the
approach FISA takes with other illegally collected information.
If the Government conducts emergency surveillance that is later found
to be improper, FISA already prohibits the Government from using that
information. Importantly, under my amendment, information about
foreigners or information that indicates a threat of death or bodily
harm could always be used by the Government, even if it were collected
under illegal procedures. The FISA Court also has the discretion to
allow the Government to use illegally collected information about U.S.
persons.
So it is an extremely modest safeguard, a very reasonable amendment.
I urge my colleagues to support it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. Mr. President, I strongly urge my colleagues to defeat
amendment 3915. It creates a superexclusionary rule on the intelligence
community. The Attorney General and the DNI have advised they will
recommend a veto.
It says: By requiring analysts to go back through relevant databases
and exact certain information as well as to determine what other
information is derived, this requirement places a tremendous burden, an
unsurmountable operational burden on the intelligence community. I
agree and yield the remainder of my time to the chairman.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I would say to the Presiding Officer
that this amendment would prevent disclosure or dissemination of any
collected information by U.S. persons if the FISA Court finds there are
deficiencies in the Government's targeting or minimization procedures
under the new authority.
There is no need to add another
penalty to ensure compliance with the requirement of the statute. The
amendment gives the court very little discretion to determine whether
nondisclosure is the appropriate remedy. Nondisclosure could be
required even if the information is particularly significant foreign
intelligence information, or if there is only a minor deficiency in the
procedure that cannot be corrected within 30 days.
It is a very short way of saying that I oppose this amendment
strongly.
Mr. BOND. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. REID. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. I ask unanimous consent that the Senate now resume
consideration of the following Feingold amendments, Nos. 3915 and 3913,
and that the time until 5:25 p.m. be for debate with respect to these
amendments en bloc;
[[Page S776]]
that upon the use or yielding back of time, the Senate proceed to vote
in relation to the amendments in the order listed above; that there be
2 minutes of debate prior to the second vote, with all time equally
divided and controlled in the usual form, and the second vote 10
minutes in duration; that when the Senate resumes S. 2248 on Friday,
February 8, and on Monday, February 11, all remaining amendments be
debated and all time used; that on Tuesday, February 12, at a time to
be determined, the Senate then proceed to vote in relation to the
amendments in an order specified later, with 2 minutes of debate prior
to the votes, equally divided and controlled in the usual form, and any
succeeding votes in the sequence be limited to 10 minutes; that no
further amendments be in order Tuesday; and that upon disposition of
all amendments, the Senate vote on the motion to invoke cloture on S.
2248; and that if cloture is invoked on the bill, Senator Dodd be
recognized to speak for up to 4 hours, Senator Feingold for up to 15
minutes; that upon the conclusion of these remarks and the recognition
of the managers for up to 10 minutes each, the Senate then proceed to
vote on passage of the bill, and any other provisions of the previous
order remain in effect.
The PRESIDING OFFICER. Is there objection?
Mr. BOND. Reserving the right to object, if I could ask the majority
leader, I had talked with Senator Feingold and suggested we have 4
minutes equally divided on the next vote so he can have 2 minutes and
the chairman and I may each have a minute.
Mr. REID. I accept the modification.
The PRESIDING OFFICER. Is there objection to the request as so
modified?
Without objection, it is so ordered.
Amendment No. 3915
Mr. FEINGOLD. How much time do I have?
The PRESIDING OFFICER. The Senator from Wisconsin has 2 minutes.
Mr. FEINGOLD. Mr. President, I wish to respond to the argument of the
Senator from West Virginia that this amendment would somehow impose a
burden because it would require the Government to identify information
about U.S. persons. I wish to be clear, these use limits kick in only
if the Government proposes to disseminate and use the information, in
which case the bill's minimization procedures already require the
Government to identify information about U.S. persons. So I can't for
the life of me figure out what the Senator is referring to when he
refers to new burdens. My amendment imposes no additional burden at
all.
I yield back the remainder of my time.
The PRESIDING OFFICER. Who yields time in opposition?
Mr. ROCKEFELLER. I have already spoken on this amendment.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. Mr. President, we have made our point that it makes no
sense to exclude the use of information simply because there is a
deficiency, any deficiency in the certification and procedures used to
target foreign terrorists overseas.
I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. ROCKEFELLER. I suggest the absence of a quorum.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. ROCKEFELLER. I ask unanimous consent that the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The question is on agreeing to amendment No. 3915.
The yeas and nays have been ordered. The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton),
the Senator from New York (Mr. Nelson), and the Senator from Illinois
(Mr. Obama) are necessarily absent.
Mr. KYL. The following Senator is necessarily absent. The Senator
from Arizona, Mr. McCain.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 40, nays 56, as follows:
[Rollcall Vote No. 11 Leg.]
YEAS--40
Akaka
Baucus
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Casey
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Kennedy
Kerry
Klobuchar
Kohl
Lautenberg
Leahy
Levin
Lincoln
McCaskill
Menendez
Mikulski
Murray
Nelson (FL)
Reed
Reid
Salazar
Sanders
Schumer
Stabenow
Tester
Webb
Whitehouse
Wyden
NAYS--56
Alexander
Allard
Barrasso
Bayh
Bennett
Bond
Brownback
Bunning
Burr
Carper
Chambliss
Coburn
Cochran
Coleman
Collins
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kyl
Landrieu
Lieberman
Lugar
Martinez
McConnell
Murkowski
Pryor
Roberts
Rockefeller
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Wicker
NOT VOTING--4
Clinton
McCain
Nelson (NE)
Obama
The amendment (No. 3915) was rejected.
Mr. REID. Mr. President, I move to reconsider the vote, and I move to
lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. REID. Mr. President, I ask unanimous consent that Senators Leahy
and Specter, managers on the part of the Judiciary Committee, be
recognized for up to 20 minutes on Tuesday, February 12, postcloture.
The PRESIDING OFFICER. Without objection, it is so ordered.
There is now 4 minutes equally divided before the next vote.
Who yields time?
The Senator from Wisconsin is recognized.
Amendment No. 3913
Mr. FEINGOLD. Mr. President, the reverse targeting amendment No. 3913
was approved by the Senate Judiciary Committee and is cosponsored by
several of my colleagues. It simply ensures that the new authorities
contained in this bill are not used to engage in what is known as
reverse targeting of Americans here at home. FISA requires the
Government to get a court order when it is wiretapping Americans on
American soil. Reverse targeting refers to the possibility that the
Government will try to get around this requirement by using these new
authorities to wiretap someone overseas, when what the Government is
trying to do and is interested in is the American with whom that
foreign person is communicating.
The bill pretends to ban reverse targeting, but this ban is so weak
as to be meaningless. It would allow reverse targeting as long as the
Government can claim it has some interest, however minor, in the
foreigner it is wiretapping. The amendment says the Government needs an
individualized court order when a significant purpose of the
surveillance is to acquire communications of a person inside the United
States.
The Director of National Intelligence has testified that this
practice, reverse targeting, is a violation of the fourth amendment.
That is what the DNI says. This amendment merely codifies that
constitutional principle.
I strongly urge my colleagues to support this important amendment.
Mr. BOND. Mr. President, I yield 1 minute on our side to the chairman
of the committee.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. ROCKEFELLER. Mr. President, this turns the bill on its head. This
says if we are targeting folks overseas, that in effect we have to get
a FISA Court approval for each and every time that happens.
Let me say the amendment causes enormous operational problems for
intelligence professionals. They are very serious about it. The DNI and
the Attorney General say it will hamper U.S. intelligence
authorizations currently authorized because every single person would
have to have a court order, and
[[Page S777]]
when you are collecting overseas, that becomes kind of a burden.
While the technical details concerning such intelligence operations
are classified, the concern is that the restriction would prevent the
Government from doing intelligence collection against a foreign city,
or a neighborhood in a foreign city, in advance of a military operation
or perhaps in pursuit of a terrorist cell.
The amendment is unnecessary, and I urge its defeat.
The PRESIDING OFFICER. The Senator from Missouri is recognized.
Mr. BOND. Mr. President, there is an explicit bright-line prohibition
against reverse targeting in the current bill. As the DNI said, it
would be in violation of the fourth amendment. But Senator Feingold
wants to replace this test with one that would make analysts engage in
mental gymnastics, trying to figure out if ``a significant purpose'' is
to target someone inside the United States. This significant purpose
throws in an additional concern: The analysts who gather and examine
intelligence need clear rules, not an ambiguous significant purpose
standard.
The adoption of this amendment is seriously detrimental to the
operation of our analysts and the DNI and the Attorney General would
recommend a veto if it is adopted.
We worked hard, and we have a good bipartisan bill that significantly
adds to the protections of civil liberties. We need to pass this bill.
I join with my colleague from West Virginia, the chairman of the
committee, in urging our colleagues to oppose the amendment.
I yield the floor.
The PRESIDING OFFICER. The majority leader is recognized.
Mr. REID. Mr. President, we have made progress on FISA. We have more
progress to make. It appears to me that this will be the last recorded
vote. We have a number of other measures we are going to try to dispose
of on this bill. I know we have at least one of Senator Bond's
amendments that will be disposed of by voice vote. We have an agreement
that we will move this bill forward for passage on Tuesday.
On Tuesday, everyone, there will be no morning business. We will come
in at 10 o'clock on Tuesday and start right on FISA, and hope by that
time to have all of the debate completed on this legislation.
Again, this will be the last vote today. I appreciate everyone's
good, hard work this week and look forward to next week.
Mr. FEINGOLD. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. If all time is yielded back, the question is
on agreeing to the amendment. The yeas and nays are ordered.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton),
the Senator from Nebraska (Mr. Nelson), the Senator from Illinois (Mr.
Obama), and the Senator from North Dakota (Mr. Dorgan) are necessarily
absent.
Mr. KYL. The following Senator is necessarily absent. The Senator
from Arizona, (Mr. McCain).
The PRESIDING OFFICER (Mr. Casey). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 38, nays 57, as follows:
[Rollcall Vote No. 12 Leg.]
YEAS--38
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Carper
Casey
Conrad
Dodd
Durbin
Feingold
Harkin
Kennedy
Kerry
Klobuchar
Kohl
Lautenberg
Leahy
Levin
McCaskill
Menendez
Mikulski
Murray
Nelson (FL)
Reed
Reid
Sanders
Schumer
Stabenow
Tester
Webb
Whitehouse
Wyden
NAYS--57
Alexander
Allard
Barrasso
Bennett
Bond
Brownback
Bunning
Burr
Chambliss
Coburn
Cochran
Coleman
Collins
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Feinstein
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kyl
Landrieu
Lieberman
Lincoln
Lugar
Martinez
McConnell
Murkowski
Pryor
Roberts
Rockefeller
Salazar
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Wicker
NOT VOTING--5
Clinton
Dorgan
McCain
Nelson (NE)
Obama
The amendment (No. 3913) was rejected.
Mr. BENNETT. I move to reconsider the vote.
Mr. SALAZAR. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. SALAZAR. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BOND. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3941, as Modified
Mr. BOND. Mr. President, I call up amendment No. 3941, as modified,
the Rockefeller-Bond amendment.
The PRESIDING OFFICER. The amendment is pending.
Mr. BOND. Mr. President, this amendment modifies a provision of the
Protect America Act. I think, along with my colleague, the chairman of
the committee, it makes a lot of sense. It lays out a process for the
FISA Court to conduct a review of a petition from an electronic
communication service provider challenging a directive from the
Government in review of a petition by the Government to enforce
compliance with its directive. Having the court conduct expedited
reviews of these petitions, whether from the provider or from the
Government, is in everyone's best interest.
These questions are essential to be resolved one way or the other for
the protection of the private partners, as well as the protection of
our national security. As long as challenges of enforcement proceedings
remain pending before the court, the intelligence community cannot
intercept terrorist communications through that provider. Those are not
unreasonable requirements. Rather, it reflects the judgment of this
body and the other in the area of national security that important
decisions that go to the heart of our intelligence production should be
made on an expedited basis.
The DNI and the Attorney General advised us they strongly support
this amendment because it would ``ensure challenges to directives and
petitions to compel compliance with directives are adjudicated in a
manner that avoids undue delays in critical intelligence collection.''
We could not agree more.
I hope we will be able to accept this amendment.
I yield the floor to my distinguished chairman.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, my remarks are only to indicate
strong support for this amendment. It is a wise modification. As far as
I know, there are none who are in dissent. I hope it will be accepted.
The PRESIDING OFFICER. All time is yielded back. The question is on
agreeing to amendment No. 3941, as modified.
The amendment (No. 3941), as modified, was agreed to.
Mr. BOND. I move to reconsider the vote.
Mr. BENNETT. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. BOND. Mr. President, we have made some progress today. We have
laid out, through the good work of the leadership of this body, with
Senator Reid and Senator McConnell, a means of going forward on
Tuesday. We have now had over 2 weeks of debate on FISA. I think not
only the fact that everything that could be said pro and con of all the
amendments has been said, but I believe we have given everybody a
chance to say it.
The good news is that when Tuesday comes around, we will have short
time agreements and proceed to vote on these critically important
amendments, and then we hope cloture and, if cloture is invoked, final
passage, with everybody having an opportunity to express themselves.
Again, I personally express my thanks to the leadership, to the
members of the committee who stood with
[[Page S778]]
us and our staff, and I thank our colleagues for letting us come to
this position where we see the end in sight.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, in every respect, I second the words
of the vice chairman of the Senate Intelligence Committee. Speaking for
this Senator, in the course of last year, this Senator has spent 6
months working on the children's health insurance bill with staff who
do so much work that they sleep 2 or 3 hours a night, including the
weekends, and achieved nothing. We have had, in a sense, the same
process on the FISA bill. It is very complicated because it is a very
delicate subject and requires this very difficult balance between
intelligence collection for the security of the Nation and civil
liberties of the people.
I am extremely proud of the way the vice chairman and others,
particularly the majority leader and the minority leader, have
conducted this affair. It took quite some time to get it going. I do
believe I also see light at the end of the tunnel. I think if we do our
work on Tuesday, we will have time to conference this bill with the
House and send a bill to the President. In any event, I am grateful,
particularly to the staff whose work is never mentioned enough.
The PRESIDING OFFICER. The Senator from Utah.
Mr. BENNETT. Mr. President, I ask unanimous consent that I might be
allowed to proceed as in morning business for the next 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________